AG lets go of lawyer who OK'd email deletion by Oso experts

GENE JOHNSON, Associated Press

Published 1:55 pm, Tuesday, October 4, 2016

SEATTLE (AP) — A longtime employee of the Washington Attorney General's Office has been let go after it came to light that he knew the state's expert witnesses in litigation over the deadly Oso landslide were deleting emails that should have been preserved.

Mark Jobson, a special assistant attorney general, parted ways with the office "by mutual agreement" when his contract expired Sept. 30, Peter Lavallee, a spokesman for the office, said Tuesday. Jobson did not immediately return an email seeking comment.

The announcement came hours after King County Superior Court Judge Roger Rogoff announced he would sanction the state over the deletion of the emails. Rogoff did not set a dollar figure on the amount of the sanctions, but said they would include costs that lawyers for slide victims incurred because of the deletions, along with a "significant" punitive amount.

The judge also said the jury in the case, which is scheduled for opening statements next Monday, will be allowed to infer that the experts deleted the emails because they would have hurt the state's case.

"The state's behavior in this case was willful," Rogoff wrote. "They knew they were deleting emails that contained potentially relevant evidence."

In an emailed statement, Attorney General Bob Ferguson said he respected the judge's decision and that his office has already begun developing new training programs to prevent such problems from recurring. The office continues trying to recover and turn over the deleted emails, he said.

"All attorneys have a duty to comply with the rules of evidence and the courts," Ferguson said. "That duty is especially important for the approximately 570 lawyers of the Attorney General's Office, because the office serves as the law firm for the people and the State. The court found that we fell short of that duty in this case, and I am committed to preventing that from happening again."

Victims of the slide, which killed 43 people in March 2014, argue that the state and a timber company should be held liable, based on the notion that their actions — including the construction of a sediment retention wall and logging — made the hillside more dangerous and that they failed to warn residents of the danger. Their attorneys say damages could top $100 million.

The plaintiffs' said they were outraged to discover in August — just before trial — that the experts had been deleting emails among themselves for the past year and a half and that at least one state lawyer knew of it. They argued that the experts tailored their findings to suit the state's case and that deleting the emails helped them cover their tracks; accused the state of fraud; and asked the judge to punish the state by finding it liable even without a trial.

The state denied any bad intent, saying Jobson and the experts sincerely believed the emails did not need to be preserved so that they could be turned over to the plaintiffs.

In a 35-page ruling Tuesday, the judge called it "more than an innocent, bumbling mistake," but "less than the conspiratorial cabal described by Plaintiffs." Despite a sworn declaration Jobson provided the court in which he said he never directed the experts to destroy records, in emails he appeared to encourage the experts to do just that, Rogoff said. Others in the office knew and should have disclosed what was happening months before the plaintiffs discovered it.

Jobson worked as an assistant attorney general from 1992 until he retired in 2015. He was then hired as a special assistant attorney general on a $200,000 yearlong contract to defend the state against claims related to the landslide, according to a copy of the contract provided by the attorney general.